This Bill makes amendments to the provisions
for the Professional Services Review (PSR) Scheme in Parts VAA and
VA of the Health Insurance Act 1973 (the Act) to facilitate
the continuing effectiveness of the Scheme following a majority
judgment by the Full Federal Court in Anthony Adams v Steven
Yung .

The PSR Scheme provides for a system of peer
review to determine whether a practitioner has inappropriately
rendered or initiated services which attract a Medicare benefit, or
has inappropriately prescribed under the Pharmaceutical Benefits
Scheme, and to apply sanctions to those who practise
inappropriately.

The proposed amendments to the Act will
enhance the administration of the Scheme to ensure that the process
is legally effective. The changes do not alter the purpose of
the Scheme but improve the administration of the process, clarify
the methods of investigating inappropriate practice, and address
evidentiary difficulties.

The proposed amendments were recommended by a
comprehensive review of the Scheme ( Report of the Review
Committee of the Professional Services Review Scheme - March
1999) undertaken by a committee chaired by the Australian
Medical Association (AMA) and comprising representatives of the
Health Insurance Commission (HIC), the Director of Professional
Services Review (Director) and the Department of Health and Aged
Care. The AMA Federal Council formally endorsed the
amendments to the Scheme at their meeting on 11-12 March 1999.

The Bill provides for improvements to the
administration of the Scheme including:

·
increasing the investigation, case preparation and negotiation
powers of the Director PSR (Recommendations 12 and 17-22 of the
Report of the Review Committee);

·
providing legal support to the peer review committees and
introducing more comprehensive training and operating protocols
(Recommendations 23 and 25-27 of the Report of the Review
Committee);

·
allowing greater legal support to the person under review
(Recommendations 24, 28-31 and 37-38 of the Report of the Review
Committee);

·
replacing the Determining Officer (currently in the Department of
Health and Aged Care) with a Determining Authority comprising
a permanent chair (medical practitioner), a permanent lay person
and a third member who is a representative of the profession of the
person under review (Recommendations 34-36 and 39 of the Report of
the Review Committee); and

·
removing the PSR Tribunals from the process whilst retaining the
right of review on points of law. This recognises that review on
the merits of the final determination is not appropriate in a
Scheme in which the key judgment is a professional judgment by the
practitioner's peers about the practitioner's conduct. The
person under review will of course have full rights to seek
judicial review at any stage of the process. (Recommendations 1 and
41 of the Report of the Review Committee).

The Bill also provides for a range of
different methods of investigating inappropriate practice. This
includes the introduction of:

·
deeming provisions in respect of high volume servicing per
day. Once a practitioner reaches or exceeds the
specified volume of services (the level will be separately agreed
with each specialty) he or she will be deemed to have been
practising inappropriately unless exceptional circumstances can be
demonstrated to the satisfaction of the committee of peers
(Recommendations 3-7 of the Report of the Review Committee);

·
sampling methodologies to be used by Committees to make findings in
relation to the provision of particular identifiable services and
to be able to extrapolate the results to a larger number of similar
services within the referral period (Recommendation 2 of the Report
of the Review Committee); and

·
generic findings to allow Committees to make a finding of
inappropriate practice where, on the evidence available, it is not
possible to identify or quantify specific services. This would
apply where there is an absence, deficiency or illegibility of
clinical or practice records and a Committee cannot base its
inquiry on the deeming provisions or sampling (Recommendation 8 of
the Report of the Review Committee).

Other related matters to be contained in the
Bill include:

·
provision to allow for the publication of details, including the
name of the practitioner once a final determination of
inappropriate practice is made (Recommendation 42 of the Report of
the Review Committee); and

·
the introduction from 1 November 1999 of a requirement that a
Committee must, in determining whether a practitioner has engaged
in inappropriate practice, have regard to whether or not the
practitioner kept adequate and contemporaneous medical records
(Recommendation 45 of the Report of the Review Committee).

In addition to the changes recommended in the
Report of the Review Committee, the Bill makes a number of minor
machinery and other administrative changes to the Scheme.
These are:

·
the ability to continue a consideration of inappropriate practice
where fraud is suspected and these concerns have been referred back
to the HIC;

·
the revised powers for Committees to require the production of
documents and information to apply to referrals made prior to the
commencement of this Bill;

·
administrative penalties to apply for the person under review or
other persons for failing to produce documents or information under
sections 106ZPM and 106ZPN; and

·
clarification of when the actual date on which a determination is
implemented in section 106V of the Act.

FINANCIAL IMPACT STATEMENT

An additional $11.9 million over the
next four years is being provided to improve the capacity of the
Scheme to ensure that Medicare funds are not paid for inappropriate
medical practice. The Scheme also helps to ensure that the
Medicare Benefits Scheme, which costs in the region of $6.9 billion
a year, is protected against abuse and over servicing.

Notes on
Clauses

Clause 1 - Short Title

Specifies the short title of the Act as the
Health Insurance Amendment (Professional Services Review) Act
1999.

Clause 2 - Commencement

Subsection (1) provides for sections 1, 2 and
3 to commence on the day on which the Act receives the Royal
Assent.

Subsection (2) provides for Items 8 and 27 of
Schedule 1 to commence either on 1 November 1999 or the first day
of the month immediately following the month in which the Act
receives the Royal Assent.

Subsection (3) provides for the remaining
items in Schedule 1 to commence on the first day of the month after
the day on which the Act receives the Royal Assent.

Clause 3 - Schedule

Ensures that the amendments, repeals and items
in the Schedule can take effect.

Amends
section 19B to provide that a medicare benefit is not payable in
respect of services rendered by a practitioner who has been
disqualified (either partly or fully) under the terms of an
agreement made between the Director and the person under review
under section 92 (see Item 35).

Item
6

Substitutes the reference in subsection 80(5) to
'Determining Officer' with 'Determining Authority' as a consequence
of the abolition of the Determining Officer and the introduction of
the Determining Authority (see Items 46 and 47).

Item
7

Inserts a
new section 80A to limit, if necessary, the operation of paragraphs
92(2)(b) and 106U(1)(ca) and (cb). Those provisions deal with
the repayment of medicare benefits pursuant to a written agreement
between the Director and the person under review or a determination
by the Determining Authority.

In each
case the requirement to repay medicare benefits applies
irrespective of whether or not the benefit was paid to the person
under review.

New
subsection 80A(1) confines those provisions to medicare benefit
which has been assigned to the person under review, while new
subsection 80A(2) confines those provisions to the circumstances
where the person under review rendered a bill for the services for
which the medicare benefit was paid.

Item
8

Inserts
into section 81 a definition of adequate and contemporaneous
medical records necessary for the purposes of subsection
82(3). Medical records must meet the standards prescribed in
specific regulations being developed by the Government in
consultation with the AMA which will be available for
implementation from 1 November 1999. This gives effect to
Recommendation 45 of the Report of the Review Committee.

Items
9-25

Inserts,
amends or repeals and substitutes various definitions into section
81 to reflect the changed operation of the Scheme.

Item
26

Clarifies
that the prescribing or dispensing of a pharmaceutical benefit is a
rendered service.

Item
27

Inserts a
new subsection 82(3) that requires a Committee to have regard to
whether or not a practitioner kept adequate and contemporaneous
medical records in determining whether the practitioner's conduct
is inappropriate. Standards for these records will be defined
in regulations. This requirement will assist a Committee in
identifying inappropriate practice as it will be able to find that
what was not recorded was not performed, or at least that the
records were inadequate. The subsection takes effect
either on 1 November 1999 or the first day of the month immediately
following the month in which the Act receives the Royal
Assent .

Item
28

Inserts a
new subsection 83(3) to provide that the functions, duties and
powers of the Director are those conferred by this Part of the Act
or the regulations. These have been considerably enhanced to
improve the effectiveness of the Scheme (Recommendation 12 of the
Report of the Review Committee).

Item
29

Repeals
subsections 86(2) to (4) and substitutes new subsections 86(2),
(3), (4), (4A) and (4B) to redefine the referral process as a
progressive action comprising several discrete stages. This
gives effect to Recommendation 14 of the Report of the Review
Committee.

Subsections 86(2), (3) and (4) define the initial referral
of a practitioner under the Scheme as an 'investigative referral'
by the HIC to the Director. An investigative referral
contains data relating to all services provided by the person under
review during the referral period, and provides the reasons why the
HIC considers the person under review may have engaged in
inappropriate practice.

Subsection
86(4A) empowers the Director to request further information from
the HIC. This makes explicit that any subsequent
investigations conducted by the Director, although confined to the
referral period, are not limited to the scope of the matters set
out in the investigative referral. This is an important
change as previously the referral by the
HIC set the boundaries within which a
Committee could examine a practitioner's professional
conduct.

Subsection
86(4B) makes clear that the HIC is required to respond to requests
for further information by the Director.

Items
30-32

Amends
subsections 87(1), (3) and 88(1) as a consequence of the amendments
made by Item 29 by inserting the word 'investigative' before
referral.

Item
33

Repeals
section 89 and substitutes new sections 89, 89A, and 89B that
provide for the new investigation and enhanced negotiation powers
of the Director encompassing the ability to engage case officers
such as legal and clinical advisers. This will allow for the
effective work-up of a case referred by the HIC to the DPSR.
Such case preparation will include examination of clinical and
practice records, preparing samples of services or types of
services for a Committee if appropriate, and the analysis of the
total number of consultation services to apply to the deeming
provisions in respect of high volume servicing.

New Section 89 - Investigation by
Director

Subsection
89(1) provides that on receipt of an investigative referral from
the HIC, the Director must conduct an investigation into the
referred services in such manner as he or she thinks
appropriate. The effect of this may mean a subsequent
referral to a Committee becomes unnecessary. Alternatively,
it will provide a Committee with sufficient information for a more
comprehensive hearing, and maximise the use of their time and
resources.

Subsection
89(2) specifies that the Director does not have to conduct an
investigation if he or she decides to take no action or no further
action under new section 93A.

New Section 89A - Director may refer material to HIC if fraud
is suspected

Subsection
89A(1) provides the Director with the ability to send particular
concerns back to the HIC for examination if fraud is suspected
during consideration of the investigative referral.

Subsection
89A(2) allows the Director to either continue to examine the
substantive part of the investigative referral, or suspend the
examination.

New Section 89B - Power of Director to
require the production of documents or the giving of
information

Section
89B provides the Director with the power to require the production
of evidence relating to the person under review or any other person
whom the Director believes to have possession, custody or control
of relevant documents. Previously such powers were limited to
a Committee only. It is necessary that the Director have
these powers in order to perform investigations required under
section 89. This gives effect to Recommendation 17 of the
Report of the Review Committee. The changes being made to
powers for the Director by section 89B are mirrored in the new
section 105A for Committees (Item 43).

New subsection 89B(1) defines the term
'relevant documents' as being documents relevant to the
investigation by the Director. The documents include clinical
or practice records of services rendered or initiated during the
referral period by not only the person under review but also
practitioners employed by the person under review or practitioners
employed by a body corporate of which the person under review is an
officer.

Under new subsection 89B(2), the Director can,
by written notice, require the person under review or any other
person whom the Director believes to have possession, custody,
control of (or be able to obtain) relevant documents, to produce
those documents to the Director or to a person nominated by the
Director. If the person to whom the notice is served
neither has the documents nor can obtain them, he or she must
advise the Director accordingly and, if the person knows (or can
ascertain) the name and address of the person who has or can obtain
them, give that name and address to the Director.

New subsection 89B(3) sets out what must be
contained in a written notice issued by the Director. It must
state the period within which, and the place at which, the
documents are to be produced. It must also state the period
within which the name and address of a person who has, or can
obtain, the relevant documents are to be given. The minimum
period of time so provided is stated by new subsection 89B(4) to be
14 days after the day on which the notice is given.

Subsection 89B(5) requires the Director to set
out in the notice details of the consequences if the notified
person fails to comply with the notice. The penalties that apply in respect of such
offences are contained in section 106ZPM and 106ZPN.
The notice is, however, not rendered invalid should those details
not be included.

Subsection 89B(6) permits the Director or a
person nominated by the Director, to inspect the document, retain
it for a reasonable period of time, or make copies of it, or
extracts from it.

Item
34

Amends
subsection 90(1) by inserting the word 'investigative' before
'referral' to make clear that this subsection concerns
investigative referrals only.

Item
35

Repeals
sections 91 (dismissing referrals as lacking sufficient
foundation), 92 (dismissing referrals if partial disqualification
is agreed) and 93 (decisions to set up Committees) and substitutes
new sections 91, 92, 93, 93A, 93B, and 93C to set out how the
Director can respond to an investigative referral from the
HIC.

Section 91
provides that the Director may dismiss an investigative referral if
he or she is satisfied that there are insufficient grounds on which
a Committee could reasonably find that the person under review had
engaged in inappropriate practice.

New Section 92 - Agreement entered into
between Director and person under review

This
section only applies if the person under review is a practitioner
(subsection 92(1)). It provides that the Director and the
person under review can enter into an agreement where the
practitioner acknowledges that his or her conduct during the
referral period constituted inappropriate practice.

Under
section 92 that is being repealed, the only action that could be
included in an agreement was partial disqualification. An
agreement made under the new subsection 92(2) may also specify that
the practitioner agrees to one or more of the following actions; a
reprimand; the repayment or non-payment of medicare benefits;
and/or full or partial disqualification from medicare or
prescribing under the pharmaceutical benefits scheme. This gives
effect to Recommendation 20 of the Report of the Review
Committee.

Given the
widened range of actions that can now be included in an agreement,
the legislation now requires that for an agreement to take effect,
it must be ratified by the Determining Authority under subsection
92(3). This gives effect to Recommendation 21 of the
Report of the Review Committee.

The date
of effect of an agreement can either be specified as part of the
agreement, or if it is not specified, is 14 days after ratification
- subsection 92(4). Paragraph 92(4)(f) provides that
once a negotiated settlement is ratified it is considered a final
determination for the purposes of referral to a Medicare
Participation Review Committee under section 106X.

Where the
Determining Authority refuses to ratify an agreement, subsection
92(5) enables the Director and the person under review to
enter into another agreement.

The
previous requirement in the Act that communications between the
Director and a practitioner in relation to proposals for an
agreement cannot be disclosed to any Panel member (other than a
Panel member consulted by the Director under paragraph 90(1)(a))
has been retained under subsection 92(6).

Subsection 92(7) clarifies the applicability
of Part VII of the National Health Act 1953 to one of the
sanctions available under an agreement in subsection 92(2).

New
Section 93 - Decisions to set up Committees

Subsection
93(1) provides for the Director to set up a Committee and make an
'adjudicative referral' to the Committee to consider whether
conduct by the person under review constitutes engaging in
inappropriate practice.

Subsection
93(2) provides the Director with the discretion in circumstances
where the investigative referral is a referral made by a Committee
to the Director under new subsection 106H(2) to make the
adjudicative referral to the original Committee or to set up a new
Committee. Such a
referral is otherwise treated as a new referral, including that the
person under review has the right to challenge the membership of
the Committee.

Subsection
93(3) provides for the form and content of an adjudicative referral
to comply with any guidelines made by the Minister under subsection
93(4). Any such guidelines are disallowable instruments under
subsection 93(5). This gives effect to Recommendation 27 of
the Report of the Review Committee.

Under
subsection 93(6) an adjudicative referral by the Director must
include a written report giving the reasons why the Director thinks
the conduct by the person under review may have been
inappropriate.

Subsection
93(7) provides that the services to be investigated by a Committee
must be set out in the adjudicative referral, and are not limited
to the reasons given by the HIC under paragraph
86(4)(b).

Subsection
93(8) concerns where the Director has formed an opinion that any
conduct by the person under review caused, was causing, or was
likely to cause, a significant threat to the life or health of a
person, or failed to comply with professional standards. If
the Director had subsequently sent a statement setting out these
concerns to the appropriate body, he or she is required to include
a statement to that effect in the adjudicative
referral.

Subsection
93(9) requires the Director to disregard any such opinion he or she
formed when making such an adjudicative referral.

New Section 93A - Decision to take no
action

Subsection
93A(1) provides that the Director can decide to take no action or
no further action in respect of an investigative referral.
Subsection 93A (2) provides that if the Director has been unable to
investigate or complete his or her investigation into the referred
services within 6 months of receiving an investigative referral
from the HIC, the Director is taken to have decided to take no
action in respect of the referral. This provision gives effect to
Recommendation 19 of the Report of the Review Committee.

New Section 93B - Director must take action
in respect of referral in certain circumstances

Section
93B has been included as a safeguard to subsection 93A(2). It
provides that the Director must take action if he or she receives a
subsequent investigative referral in relation to the same
practitioner. This gives effect to Recommendation 19 of the
Report of the Review Committee.

The
Director must take action on this subsequent referral (subsection
93B(2)) by either dismissing it, entering into an agreement with
the practitioner under section 92, or setting up a Committee in
accordance with section 93 (subsection 93B(3)). This must
occur before the end of the period of 6 months after the day on
which the Director received the further referral.

New Section 93C - What happens if no action
taken within 9 months after investigative referral

Section
93C provides that once the Director has taken action (by notifying
the practitioner that an investigation into the referred services
is to be conducted, entering an agreement with the person under
review under, or making an adjudicative referral to a Committee)
the Director has a further 3 months to progress the investigation
by either dismissing the referral, entering into an agreement with
the person under review under section 92, or convening a
Committee. If the Director does none of these within
the 3-month period the investigative referral is taken to have
lapsed.

Specific provision has been made to allow
for extensions to the period in which the Director must action an
investigative referral under section 93C. This has been done
to provide for circumstances where an investigation by the Director
has been suspended under paragraph 89A(2)(b) due to suspicion of
fraud, or where there has been a failure to comply with a notice
given under subsection 89B(2).

Item
36

Amends
subsections 94(1) and (2) by inserting the word 'investigative'
before referral.

Item
37

Repeals
subsection 94(3) and substitutes a new subsection specifying that a
notice of a decision by the Director to set up a Committee must
include both the instrument making the adjudicative referral and
the report attached to the adjudicative referral.

Item
38

Amends
subsection 94(4) by inserting 'investigative' before
referral.

Items 39-40

Remakes subsection 95(6) to allow the Director
to appoint either one or two, rather than 2, additional Panel
members to a Committee if he or she considers that the
appointment(s) would give the Committee a wider range of clinical
expertise. Paragraph 95(1)(c) is amended as a consequence by
inserting 'not more than' before '2'.

Item 41

Amends paragraphs 99(7)(b) and (d) by
substituting the term 'Determining Authority' for the term
'Determining Officer'. The change gives effect to
Recommendation 34 of the Report of the Review Committee in that the
Determining Officer is replaced with a Determining Authority.

Item 42

Repeals section 100, which allows the
Chairperson of a Committee, with the Director’s approval, to
engage consultants who have suitable qualifications and
experience. Under the revised arrangements, it becomes the
responsibility of the Director to provide services to a Committee
(and the Determining Authority) which may include engaging
consultants. This is covered by Item 61 at new section
106ZPL.

Item 43

Repeals sections 103 (rights of persons under
review at hearings), 104 (requiring persons under review to give
evidence, etc), 105 (consequences of not complying with
requirements) and 105A (persons to produce documents prior to
hearing) relating to Committee activities. These sections
currently contain a mix of requirements for appearance at hearings
and production of documents by both the person under review and
other persons. The Item reorganises these provisions into
sections that:

-
cover the rights of the person under review at Committee hearings
(new section 103);

-
require the person under review to appear at a Committee hearing
and give evidence (new section 104);

-
set out the consequences of the person under review failing to
appear and give evidence (new section 105); and

-
require the person under review or another person to produce
documents or other information to a Committee (new section
105A).

New Section 103 - Rights of persons under
review at hearings

Subsection 103(1) now precisely articulates
the person under review’s entitlements at a hearing.
Subject to any reasonable limitations or restrictions that the
Committee may impose, these entitlements include: attending the
hearing; being accompanied by a lawyer or another adviser; calling
witnesses to give evidence (Recommendation 24 of the Report of the
Review Committee) other than evidence as to his or her character
which is can only be provided as a written statement; questioning a
person giving evidence at a hearing; addressing the Committee on
questions of law arising during the hearing; and, at the conclusion
of the taking of evidence, making a final address to the Committee
on questions of law, the conduct of the hearing and the merits of
the matters to which the hearing relates (Recommendation 28 of the
Report of the Review Committee).

Subsections 103(2) and 103(3) have been remade
to respectively define the rights of lawyers and advisers (other
than lawyers) accompanying the person under review at a hearing and
put into effect Recommendation 28 of the Report of the Review
Committee. Subject to any reasonable limitations or
restrictions that the Committee may impose, a lawyer or a legal
adviser may give advice to the person under review and, after the
conclusion of taking of evidence, make a final address to the
Committee on behalf of the person under review on the conduct of
the hearing and the merits of the matters. In addition, the
lawyer may address the Committee on questions of law during the
hearing.

Subsection 103(4) restricts a final address to
either a lawyer or another adviser if the person under review is
accompanied by both at the hearing.

Subsection 103(5) sets out that any expenses
incurred by engaging a lawyer or another person to accompany them
to a hearing is to be at the expense of the person under
review.

New Section - 104 Requiring persons under
review to appear and give evidence at hearing

Subsection 104(1) has been reworked to make it
clear that the Committee’s notice of hearing must require the
person under review to appear at the hearing and give evidence to
the Committee. The Act as it stood offered the person under
review the option of either appearing at the hearing and giving
evidence, appearing at the hearing and producing documents, or
both.

Subsection 104(2) provides for the situation
where a person under review fails to attend a hearing or to give
evidence. In these circumstances, the Committee has an option
to set another hearing date at least 28 days after the new notice
of hearing. If it chooses to do so, it must advise the person
under review accordingly in writing. In addition, a Committee
must notify the Director of a failure to attend or a refusal to
give evidence and the Director must disqualify the person under
review under subsection 105(3).

Subsection 104(3) provides that the
requirement to fix another hearing date does not apply if both the
person under review and the Chairman believe that answering a
question might tend to be self-incriminating for the person under
review.

New Section 105 - Consequences of failing to
appear and give evidence

Subsection 105(1) is reworked to provide the
Committee with a discretion to continue to conduct a hearing if the
person under review fails to appear or, if he or she does appear
and refuses or fails to give evidence or answer a question asked by
a Committee member. Under these circumstances, a Committee may hold
a hearing without the person under review. The Act as it
stands only allows this course of action after the Committee has
set a second hearing date and advised the person under review
accordingly.

Subsection 105(2) specifies that the Committee
may not proceed with the hearing if the person under review
notifies the Committee that he or she has a medical condition which
prevents compliance with its requirements under subsection 104(2),
and if the person has complied with any reasonable requirements of
the Committee regarding medical examinations which confirm the
medical condition.

Under subsection 105(3), if a person under
review (who is a practitioner) fails to comply with subsection
105(1), then the Director must fully disqualify the person from
medicare and advise the HIC.

Subsection 105(4) specifies that if the person
under review subsequently complies with a requirement under this
section, the Chairperson must advise the Director accordingly and
the rights accorded to the person under review by section 103 are
to be reinstated. Subsection 105(5) requires the Director, as
soon as practicable after being so advised, to revoke the
disqualification and give the HIC written notice of the
revocation.

Subsection 105(6) has the effect that the
section does not apply if the person under review fails to answer a
question that both the person and the Chairperson believe if
answered would be self-incriminating.

New Section 105A - Power of Committee to
require the production of documents or the giving of information

Section 105A allows a Committee to obtain
documents identified as being relevant to the inquiry both before
and during the hearing. The new section also provides the
Committee with the power to access documents, which are in the
possession, custody or control of someone other than the person
under review.

New subsection 105A(1) defines the term
“relevant documents” as being documents relevant to the
matters referred to the Committee. The documents include
clinical or practice records of services rendered or initiated by
not only the person under review but also practitioners employed by
the person under review or practitioners employed by a body
corporate of which the person under review is an officer.

Under new subsection 105A(2), a Committee can,
by written notice signed by a Committee member either before or
during a hearing, require the person under review or any other
person whom the Committee believes to have possession, custody,
control of (or be able to obtain) relevant documents to produce
those documents to a Committee member or to a person nominated by
the Committee member.

If the person to whom the notice is served
neither has the documents nor can obtain them, he or she must
advise the Committee accordingly and, if the person knows (or can
ascertain) the name and address of the person who has or can obtain
them, give that name and address to the Committee.

New subsection 105A(3) sets out what must be
contained in a written notice issued by the Committee. It
must state the period within which, and the place at which, the
documents are to be produced. It must also state the period
within which the name and address of the person who has, or can
obtain, the relevant documents are to be given. The minimum period
of time so provided is stated by new subsection 105A(4) to be 14
days after the day on which the notice is given.

Subsection 105A(5) requires a Committee to set
out in the notice details of the consequences if the notified
person fails to comply with the notice. The notice is, however, not
rendered invalid should those details not be included.

Subsection 105A(6) permits a Committee member,
or person nominated by the Committee, to inspect the document,
retain it for a reasonable period of time or make copies of it or
extracts from it.

Item 44

Repeals Subdivision D of Division 4 of Part
VAA and replaces it with a new Subdivision C - Action to
be taken by Committees.

New Subsection - 106G Application of
Subdivision

New subsection 106G(1) establishes that the
matters forming the subject of a Committee’s inquiry are
those outlined in the adjudicative referral, that is, the referral
from the Director to the Committee.

Under new subsection 106G(2), unless the
Director has approved one or more extensions of time requested by
the Committee Chairperson, or another Committee member if the
Chairperson is not available, the Committee must give the
Determining Authority its final report within 6 months after
receiving the adjudicative referral. Extensions of time are
not to exceed one month at each request.

New subsections 106G(3) and 106G(4) allow the
Committee, in certain circumstances, to make a written
determination to further extend the 6 months available to it to
provide the Determining Authority with a final report. Those
circumstances are when the person under review is unable to attend
hearings because of illness, or fails to comply with requirements
contained in a written notice from the Committee to that person or
another person, or the Committee suspends its inquiry because it
suspects fraud may have been committed. Under these
circumstances, the period available is extended by the time for
which the Committee makes such a written determination.

New Section - 106H Matters to be considered by
a Committee

New section 106H addresses those matters
contained in Recommendation 15 of the Report of the Review
Committee, that is, a Committee be able to raise new concerns which
may become an additional referral by the Director.

Subsection 106H(1) limits the matters in
respect of which a Committee may make findings to those services
specified in the adjudicative referral.

New subsection 106H(2) provides for issues not
part of an original adjudicative referral but which are
subsequently identified by a Committee during the inquiry process
to be sent back to the Director for investigation.

New subsection 106H(3) provides for referrals
of this kind from the Committee to the Director to be considered to
be another investigative referral. The provisions applying to
the referral of matters from the HIC to the Director also apply to
any referral by a Committee to the Director.

New Section 106J - Committee is not required
to have regard to all services covered by the adjudicative
referral

New section 106J provides that a Committee
may, but is not required to, have regard to conduct in connection
with rendering or initiating all of the referred services.

This provision, together with the new sections
106K, 106KA and 106KB address one of the major practical
difficulties for Committees arising from the majority judgment of
the Full Federal Court in the Yung case, namely that a
Committee must consider each of the individual services contained
in the referral.

While a Committee can examine individual
services it is not required to do so, particularly in circumstances
where the Committee has regard to a sample of services (under
section 106K); or where services form part of a prescribed pattern
of services (under section 106KA); or where, by reason of no
records or no adequate records, the Committee makes a generic
finding of inappropriate practice (under section 106KB).

New Section 106K - Committee may have regard
to samples of services

New section 106K gives effect to
Recommendation 2 of the Report of the Review Committee by providing
a legislative basis for the application of sampling as one of a
number of possible approaches a Committee might take in quantifying
the extent of inappropriate practice the person under review can be
found to have engaged in. It allows a Committee to sample
services included in a particular class of referred services, to
make findings about specific services in the sample, and to
extrapolate the results to a larger number of similar services in
the referral, provided the methodology is statistically
sound.

The PSR Scheme had originally provided for a
Committee to be able to apply the findings from a sample of
services rendered or initiated by the person under review to the
whole class of services of concern. Those provisions were
repealed in November 1997 as the sampling procedures proved to be
administratively complex, cumbersome and unworkable in
practice.

However, during the course of its review of
the PSR Scheme, the Review Committee received and accepted expert
statistical advice that, if properly constructed, the use of
sampling protocols could offer a quantifiable way of addressing
some of the issues of inappropriate practice.

Subsection 106K(1) sets out that a Committee
may consider a sample in a particular class of the referred
services when considering conduct in connection with the rendering
or initiation of those services, rather than having to consider all
the services in the referral.

Subsection 106K(2) allows that where a Committee makes a
finding of inappropriate practice about conduct in connection with
the rendering or initiation of all, or a proportion, of the
services included in the sample, then that person’s conduct
in connection with the entire class of services from which the
sample is drawn is taken to have constituted engaging in
inappropriate practice.

New subsections 106K(3) and 106K(5) empower
the Minister to detail, by disallowable instrument, the form and
content of the sampling methodologies to be used in relation to the
identification of particular services.

New subsection 106K(4) allows a Committee to
use a sampling methodology not specified by Ministerial
Determination provided the Committee has received advice from an
accredited statistician that the sampling methodology is
statistically valid.

New Section 106KA - Patterns of
Service

New section 106KA provides Committees with an
alternative empirically valid method of inquiry where the focus of
their investigations is extremely high volumes of services per
day.

To apply sampling protocols in these
circumstances would require a Committee to examine such a high
number of individual services to arrive at a conclusion that would
sustain a viable and worthwhile level of sanction that the process
would be impractical. This was one of the major criticisms of
the former Medical Services Committees of Inquiry process. It
was found that the only effective way to tackle high volume cases
on the basis of patterns of services was to be able to establish a
process whereby a Committee could establish what volume of services
was unacceptable to a practitioner’s peers which could be
sustained in Court. The prevailing absence of any standards
on volumes of services that are generally unacceptable has
prevented Committees from using this approach.

With the support of the profession and after
extensive discussions with a number of professional organisations,
agreement was reached that a deeming provision be introduced
(Recommendation 3 of the Review Committee Report) such that once a
specified number of services per day is reached, the practitioner
would be required to justify the provision of such a high volume of
services to a Committee.

New subsection 106KA(1) and (2) provide that
where the referred services constitute a 'prescribed pattern of
services', the person's conduct in respect of those services is
taken to have constituted engaging in inappropriate practice unless
the person can satisfy the Committee that the services were
rendered or initiated under exceptional circumstances.

New subsection 106KA(1) establishes the
linkage between a 'prescribed pattern of services' and the
inappropriate practice by deeming those services to be
inappropriate. New subsection 106KA(2) establishes the
exceptional circumstances exception to the deeming provision in
subsection 106KA(1). The deeming provision in subsection
106KA(1) will not apply in respect of a particular day or days
where a person under review satisfies a Committee that services on
that day or days were rendered or initiated under exceptional
circumstances.

This approach recognises that while the
exceptional circumstances may relate only to specified services on
a particular day they nevertheless impact on the whole day.
This gives the person under review the benefit of any doubt, and
also avoids the need to examine individual services on the day in
question.

Subsection 106KA(3) specifies that the details
of exceptional circumstances can be set out in the regulations (as
stated in the Recommendation 6 of the Report of the Review
Committee). New subsection 106KA(5) specifies that a
practitioner may also validly present a claim for exceptional
circumstances even though those circumstances may not have been
described in the regulations. Any claim of exceptional
circumstances will need to be based on general evidence such as,
for general practice, the absence of alternative medical services
to the practitioner's patients or unusual occurrences causing
unusual levels of need for consultation services. This gives effect
to Recommendation 5 of the Report of the Review Committee.

Because the practice patterns of the various
specialty groups and professions to which the PSR arrangements
apply vary so substantially, it is not possible to define a single
deeming point to cover every practitioner group. The
regulations will, therefore, prescribe a different number of
services and a different number of days in respect of different
categories of practitioner. New subsection 106KA(4) provides
the authority for the setting of those different specialty or
profession specific deeming points, a matter also addressed in
Recommendations 4 and 6 of the Report of the Review
Committee.

New subsection 106KA(6) makes it clear that
the deeming provisions will not be applied retrospectively.
They will only apply to services rendered or initiated after the
starting date of this new legislation.

New subsection 106KA(7) specifies that, where
a practitioner’s servicing pattern falls within the range of
the deeming provisions, a Committee is not compelled to limit the
scope of its inquiry to patterns of service issues. In other
words, nothing prevents a Committee from making a finding of
inappropriate practice on services less than the deeming
provisions. A Committee may, for instance, decide to deal
with such a referral by way of sampling under section 106K.

The deeming point in no way represents some
marker below which a practitioner is automatically considered to be
practising appropriately and above which is automatically
considered to have engaged in inappropriate practice. The
deeming point does nothing more than to shift the evidentiary
burden to the person under review. The only automatic outcome
from reaching or exceeding the deeming point is that the
practitioner will be referred to a Committee of his or her
peers. The practitioner will then be given the opportunity to
demonstrate to the satisfaction of that Committee that exceptional
circumstances prevailed during the referral period which allowed
him or her to practice appropriately.

New Section 106KB - Generic Findings of
Inappropriate Practice

As provided for in Recommendation 8 of the
Report of the Review Committee, new subsection 106KB(1) addresses
the situation where there is an absence, deficiency or illegibility
of clinical or practice records and a Committee inquiry based on
statistical sampling or patterns of practice is not
possible.

New subsection 106KB(2) provides the Committee
with the authority to, in these circumstances, base its findings on
any information it is able to obtain including HIC data, the
Director’s investigations and evidence obtained at Committee
hearings.

New subsection 106KB(3) provides for a
Committee to make a generic finding of inappropriate practice
where, on the evidence available, it is not possible to identify or
quantify specific services. Given that it is not possible to
identify or quantify services, any determination arising from such
a finding of inappropriate practice will not include the option of
seeking a repayment of medicare benefits (Recommendation 11 of the
Report of the Review Committee).

New Section - 106KC Notification by Committee
to Director of matters that are not related to the
referral

As specified in Recommendation 33 of the
Review Committee Report, new subsection 106KC(1) empowers the
Committee to notify the Director in writing of any matters arising
out of an inquiry which, while unrelated to the referral being
inquired into, the Committee considers to be of significant concern
to the profession of the person under review, so that it may be
considered by the HIC or another appropriate body.

New subsection 106KC(2) requires the Director
to give particulars of any such notification to the HIC or another
appropriate body.

New Section - 106KD Preparation of draft
report

The changes to the preparation of reports by a
Committee to include draft reports, arise from Recommendation 29 of
the Report of the Review Committee.

New subsection 106KD(1) requires a Committee
to prepare a written draft report expressing the respective
preliminary findings of its members.

New subsection 106KD(2) provides that if the
person under review is a practitioner, and if that practitioner
agrees in writing, the draft report may include recommendations as
to his or her partial or full disqualification from medicare, as
well as the nature and period of disqualification.

New subsection 106KD(3) requires the Committee
to give the person under review a copy of the draft report and
invite the practitioner to make submissions suggesting changes to
it within 21 days of its being received by the
practitioner.

New Section 106L - Final report of
Committee

New subsection 106L(1), which responds to
Recommendation 30 of the Report of the Review Committee, requires
the Committee to take any submissions made by the person under
review into account and prepare a final report setting out the
respective findings of its members.

New subsection 106L(2) provides that if the
person under review is a practitioner, and if that practitioner
agrees in writing, the final report may include recommendations as
to partial or full disqualification from medicare, as well as the
nature and period of disqualification.

New subsection 106L(3) requires the Committee
to give copies of the final report to the person under review and
Director.

New subsection 106L(4) requires the Committee
to give the final report to the Determining Authority not earlier
than 28 days after the day on which copies are given to the person
under review. This 28-day delay has been provided to allow
the person under review to exercise a right of appeal to the
Federal Court on a point of law. This gives effect to
Recommendation 31 of the Report of the Review Committee.

New Section - 106M Referral of matter to a
regulatory body to be mentioned in the Committee’s
report

This section gives effect to Recommendation 32
of the Report of the Review Committee.

New subsection 106M(1) refers to situations
where a Committee, during the course of an inquiry into an
adjudicative referral from the Director, forms an opinion that any
conduct by the person under review caused, or was likely to cause,
a significant threat to the life or health of a person or that the
person under review failed to comply with professional standards,
and has sent a statement of those concerns to the Director.

New subsection 106M(2) requires the Committee
to set out the terms of any statement to the Director in either its
draft or final report, depending upon the stage of the inquiry at
which it formed that opinion.

New subsection 106M(3) requires the Committee
to disregard any opinion so formed when making its findings on the
question of whether the person under review engaged in
inappropriate practice for the purposes of its draft or final
report.

New Section - 106N Committee may refer
material to HIC if fraud is suspected

Remakes subsection 106N(1) so that a
Committee, if it thinks a person being reviewed may have committed
particular offences, need no longer suspend its consideration of
the complete adjudicative referral but may send the details of the
matters it thinks may have constituted the offence to the
HIC.

New subsection 106N(2) gives the Committee the
option of either stopping its inquiry or continuing its inquiry as
it thinks appropriate.

Item 45

Repeals the heading of Division 5 of Part VAA
and substitutes it with a new heading - Determinations by the
Determining Authority.

Item 46

Repeals the heading Subdivision A of Division
5 of Part VAA.

Item 47

Repeals section 106Q (the Determining
Officer), section 106R (copies of Committee reports to be given to
persons under review), section 106S (draft determinations relating
to persons under review) and section 106T (final determinations
relating to persons under review). The Item reorganises these
sections to give effect to the replacement of the Determining
Officer with a Determining Authority as set out in Recommendation
34 of the Report of the Review Committee.

New Section 106Q - The Determining
Authority

New subsection 106Q(1) provides for
the establishment of a Determining Authority.

New subsection 106Q(2) provides for
the Authority’s functions and powers to be conferred on it
under Part VAA of the Act.

New subsections 106Q(3) and (4) allow
the Minister to give the authority guidelines as to how to perform
its functions and exercise its powers and that any such Ministerial
guidelines be a disallowable instrument (Recommendation 39 of the
Report of the Review Committee).

New Section - 106R Agreements sent
to Authority for ratification

New subsection 106R(1) requires the
Determining Authority to make a decision either ratifying or
refusing to ratify an agreement entered into between the Director
and the person under review within 1 month after receiving the
agreement (Recommendation 21 of the Report of the Review
Committee).

New subsection 106R(2) provides that
if the Determining Authority fails to make a decision within that
month, the agreement is taken to have been ratified.

New subsection 106R(3) requires the
Determining Authority to notify the Director and the person under
review in writing within 7 days after the decision has been made or
deemed to have been made.

New subsection 106R(4) requires the
Determining Authority to specify, should it refuse to ratify an
agreement, its reasons for that refusal in the notice to the
Director and person under review.

New subsection 106R(5) provides that
a failure to notify the Director or person under review or to
provide reasons for any refusal to ratify an agreement does not
affect the validity of the decision.

New Section 106S - If no finding
by a Committee of inappropriate practice

New section 106S requires the
Determining Authority, on receipt of a final report from a
Committee which does not contain a unanimous or majority finding of
inappropriate practice, to give written notice to that effect the
person under review, the Director and the Commission and advise
that the Authority will not be taking any action as a result of the
report.

New subsection 106T(1) requires the
Determining Authority, on receipt of a final report from a
Committee containing a unanimous or majority finding of
inappropriate practice, to make a draft determination and give a
copy of it to the person under review and the Director within 1
month after the day of making it (Recommendation 37 of the Report
of the Review Committee).

New subsection 106T(2) requires the
Determining Authority to provide the person under review with a
statement inviting him or her to make written submissions within 14
days suggesting changes to the directions contained in the draft
determination (Recommendation 37 of the Report of the Review
Committee).

New subsection 106T(3) provides for
the person under review to make those written submissions within
the 14-day period after the day of receipt of a draft
determination.

New subsection 106T(4) provides that
a failure to provide the person under review and the Director with
the draft determination within the one month period specified in
subsection 106S(1) does not affect the validity of the draft
determination.

New Section 106TA - Final
determinations relating to persons under review if Committee makes
a finding of inappropriate practice

Subsection 106TA(1) provides that the
Determining Authority is required to take submissions from the
person under review into account (Recommendation 38 of the Review
Committee Report) and specifies the period of time provided to the
Determining Authority to make a final determination as being one
month after the 14 day time period for the presentation of
submissions from the person under review has expired.

Subsection 106TA(2) provides that a
failure to make the final determination within the one month period
does not affect the validity of the final determination.

Item 48

Makes a minor amendment to subsection 106U(1)
so that the reference to a determination is a reference to both a
draft and a final determination.

Item 49

Repeals paragraph 106U(1)(c) and substitutes
new paragraphs 106U(1)(c), (ca) and (cb) to clarify the
circumstances under which a medicare benefit is repayable following
a finding of inappropriate practice.

These changes are necessary as a consequence
of new sections 106K, 106KA and 106KB which relate to sampling of
services, patterns of services and generic findings
respectively.

New paragraph 106U(1)(c) provides that a
determination may contain a direction that any medicare benefit
payable in respect of a service in respect of which there is a
finding of inappropriate practice cease to be payable.

New paragraph 106U(1)(ca) provides that a
determination may contain a direction for the repayment of medicare
benefit to the Commonwealth in respect of a particular identified
service which is the subject of a finding of inappropriate
practice. This provision also clarifies that there can
be no repayment of medicare benefit following a finding of
inappropriate practice using the generic findings methodology.

New paragraph 106U(1)(cb) provides that a
determination may contain a direction for repayment of medicare
benefit to the Commonwealth in respect of a particular class of
services which are the subject of a finding of inappropriate
practice using the sampling methodology in section 106K(2).

Item 50

Inserts a new subsection 106U(1A) which
requires any medicare benefits that are to be repaid under
paragraph 106U(1)(cb), to be repaid at the lower level of benefit
applicable to the service or services (that is, item or items in
the General Medical Services Table) found to have
constituted inappropriate practice.

This recognises that different levels of
benefit may be payable in respect of different types of services as
well as in respect of the same service performed at different
times, and that the use of the sampling methodology may therefore
result in findings where it is not possible to directly link
benefits paid to services rendered. Adopting this approach of
only requiring repayment of the lowest amount of benefit paid
ensures that the Determining Authority can direct the repayment of
medicare benefits pursuant to a finding of inappropriate practice
using the sampling methodology without unduly disadvantaging the
person under review.

Item 51

Inserts a new section 106UAA requiring the
Determining Authority, in making a determination, to not take
account of any opinions it might have formed in sending a statement
to the Director under section 106XA that the person under
review’s conduct might represent a significant threat to the
life or health of another person, or under section 106XB that the
person under review failed to comply with professional
standards.

Item 52

Substitutes in section 106UA, the term
'Determining Authority' for 'Determining Officer'.

Item 53

Reworks section 106V so that, subject to
appeals, the date the final determination takes effect is extended
from 28 days to 35 days after the Determining Authority gives a
copy to the person under review - subsection 106V(1). This
will ensure that a final determination does not take effect until
all avenues of appeal have been exhausted. New section 106V
gives effect (in part) to Recommendation 40 of the Report of the
Review Committee.

Subsection 106V(2) defines the dates from
which the final determination takes effect when the person under
review institutes court proceedings.

Subsection 106V(3) defines the prescribed
number of days applying to the calculation of the effective date of
the final determination depending on which court the appeal is
lodged.

Item 54

Substitutes in section 106W, the term
'Determining Authority' for 'Determining Officer'.

Item 55

Repeals Subdivision B of Division 5 of Part
VAA that becomes unnecessary because of the abolition of the
position of the Determining Officer and its replacement by a
Determining Authority. This gives effect (in part) to
Recommendation 34 of the Report of the Review Committee.

Item 56

Inserts a new Division 5A to expand on the
existing provisions for the referral of the person under review to
specified bodies where there are concerns about possible
significant threats to the life or health of any person (reworked
section 106XA) or concerns that the person under review may not
have complied with professional standards (new section
106XB). These changes give effect to Recommendation 32 of the
Report of the Review Committee.

New Section 106XA - Referring to an appropriate regulatory body
any significant threat to life or health

Subsection 106XA(1) provides for that process
where a Committee or the Determining Authority, in performing their
functions under the Act, form a view that the conduct of the person
under review is such to be a significant threat to the life or
health of a person.

The Committee or Determining Officer must give
a written statement to that effect to the Director, along with
details on which the opinion is based.

Subsection 106XA(2) requires the Director to
refer a matter to an appropriate regulatory body if, during the
course of his or her investigation of the person under review under
section 89, the Director forms a view that the conduct of the
person under review represents or may represent a significant
threat to the life or health of a person. The subsection also
requires the Director to refer any concerns of this kind identified
by a Committee to an appropriate regulatory body and specifies the
way in which such referrals are to be made.

Subsection 106XA(3) provides for referrals of
practitioners to be directed to the appropriate registering,
licensing or practice regulating bodies that have the power to take
action against the practitioner. For instance, in the case of
medical practitioners, this will be the State or Territory medical
board.

Subsection 106XA(4) provides similar powers
for the referral of persons other than practitioners to the
appropriate registration or licensing authority of that
person.

New Section 106XB - Referring to
appropriate regulatory body any non-compliance by a practitioner
with professional standards

New section 106XB mirrors the provisions in
section 106XA but where the concerns identified now relate to a
person under review’s failure to comply with professional
standards. Subsection 106XB(3) provides for the specification
in regulations of the body to which a concern should be
referred.

In the context of sections 106XA and 106XB it
is intended that 'conduct' should be given its widest possible
meaning.

Item 57

Substitutes a new heading for Division 6 of
Part VAA

Division 6 - Provisions relating to the Director, Panel
members,

staff and consultants, the Determining Authority and the

provision of services to a Committee or the Authority

The changes in new section 106ZM to
106ZP give effect to Recommendation 18 of the Report of the Review
Committee.

Item 58

Amends subsection 106ZM(1) to allow the
Director to engage people to perform services in connection with
the performance of his or her functions or duties, or the exercise
of his or her powers. This will enable the Director, amongst
other things, to engage staff to carry out investigative referrals
made by the HIC, and provide services to a Committee and the
Determining Authority.

Item 59

Amends subsection 106ZN(1) to allow the
Director to also obtain assistance from a Commonwealth authority in
connection with his or her expanded role of investigation and
providing services to a Committee and the Determining
Authority.

Item 60

Amends subsection 106ZP(1) to allow the
Director to engage people as consultants to assist him or her with
the expanded role of investigation and providing services to a
Committee and the Determining Authority.

Item 61

Inserts new Subdivisons D and E to Division 6
of Part VAA

Subdivision D -
Provisions relating to Determining Authority

Sections 106ZPA to 106ZPI gives effect to
Recommendation 35 of the Report of the Review Committee, and are
common provisions for these types of committees in
legislation. The provisions are also similar to the
arrangements for Committees under sections 95 and 106ZG to 106ZL of
the Act.

New Section 106ZPA - Constitution of Determining Authority

New subsection 106ZPA(1) specifies the
composition of the Determining Authority as being a medical
practitioner Chairman, a member who is not a practitioner (that is,
a lay person) and seven other members representing each of the
professions to whom the Scheme applies (defined under section 81,
‘profession’).

New subsection 106ZPA(2) prescribes the
constitution of the Determining Authority when performing its
functions of either ratifying an agreement entered into between the
Director and the person under review under section 92 or in
considering a report from a Committee. The Determining
Authority is to consist of the Chairman (a medical practitioner), a
non-practitioner member and a member belonging to the same
profession as the person under review.

New Section 106ZPB - Appointment of members of the
Authority

New subsection 106ZPB(1) specifies that
members of the Authority are to be appointed by the Minister.

New subsection 106ZPB(2) requires the Minister
to consult with the AMA over the appointment of the Chairman
(medical practitioner), the non-practitioner member (lay person)
and the other medical practitioner member before appointing people
to those positions.

New subsection 106ZPB(3) requires the Minister
to consult with those organisations or associations representing
the professions, other than the medical profession, that the
Minister considers appropriate before appointing people to those
positions.

New Section 106ZPC - Term of office

New section 106ZPC specifies the term of
appointment of members of the Determining Authority as being no
longer than 5 years and allows for the reappointment of
members.

New Section 106ZPD - Terms and conditions of appointment

New section 106ZPD provides that
members of the Determining Authority are appointed on a part time
basis and that the terms and conditions of appointment are to be
specified in the instrument of appointment.

New Section 106ZPE - Outside
employment

New section 106ZPE prohibits a member
from engaging in any outside paid employment, which the Minister
considers, would constitute a conflict of interest with the
member’s functions and duties.

New Section 106ZPF -
Resignation

New section 106ZPF provides that a
member’s resignation must be in writing, signed by the
member, and delivered to the Minister.

New Section 106ZPG - Termination
of appointment

New section 106ZPG provides for the
Minister to be able to terminate a member’s appointment and
specifies the grounds for termination, namely misbehaviour,
physical or mental incapacity, bankruptcy or engagement in paid
employment that would constitute a conflict of interest with the
member’s duties on the Determining Authority.

New Section 106ZPH - Acting
appointments

Subsection 106ZPH(1) provides for the
Minister to appoint persons to act when a vacancy occurs and during
periods of absence by a member (Gives effect in part to
Recommendation 36 of the Report of the Review Committee).

Subsection 106ZPH(2) requires an
appointee acting as Chairman to be a medical practitioner.

Subsection 106ZPH(3) requires any
acting appointee to be a member of the profession of the person
whose absence created the vacancy.

Subsection 106ZPH(4) requires the
Minister to consult with the relevant professional organisations
before making any acting appointment.

Subsection 106ZPH(5) empowers the
Minister to terminate an acting appointment at any time.

Subsection 106ZPH(6) provides that
the activities of people occupying acting positions remain valid
even though the occasion for an appointment may not have arisen,
the appointment process may have been defective in some way, an
appointment may have ceased to have effect or the occasion to act
had not arisen or had ceased.

New Section 106ZPI - Remuneration
and allowances

Subsections 106ZPI(1) and (2) provide
that any remuneration or allowances payable to a member are to be
at rates specified by the Remuneration Tribunal or, in the absence
of any Remuneration Tribunal determination, as specified in the
regulations.

Subsection 106ZPI(3) specifies that
the section has effect subject to the Remuneration Tribunal Act
1973.

New Section 106ZPJ - Protection of
members of the Authority

New section 106ZPJ provides for
members to have the same protection and immunities available to
Justices of the High Court and mirrors provisions being repealed
that applied to Tribunals in Part VA of the Act.

New Section 106ZPK - Meetings of
the Determining Authority

New subsection 106ZPK(1) requires the
Chairman to convene meetings to consider either the ratification of
an agreement between the Director and the person under review or a
Committee report. It should be noted that any such meeting
does not need to be convened as a face-to-face meeting, but can be
done as a telephone link-up, video-conference, or by other
appropriate means.

New subsection 106ZPK(2) requires
these meetings to be held in private.

New subsection 106ZPK(3) requires the
Chairman to preside at any meeting of the Determining
Authority.

New subsection 106ZPK(4) specifies
that issues are to be decided by a majority vote of members
constituting that Determining Authority.

New subsection 106ZPK(5) provides
that each member has one vote.

New subsection 106ZPK(6) provides
that, subject to any conditions imposed by the Act and regulations,
meetings may be conducted as members see fit (Recommendations 10
and 39 of the Report of the Review Committee).

Subdivision E - Provision of services to a Committee
and

the Determining Authority

New Section 106ZPL - Director to
arrange for provision of services

This section gives effect to
Recommendations 23 and 25 of the Report of the Review
Committee.

New subsection 106ZPL(1) imposes a
requirement on the Director to provide the Committees and
Determining Authority with support services.

The arrangements for separation of
certain services between the Director, a Committee and the
Determining Authority is to ensure procedural fairness and to
minimise any perception of bias. For example, a legal
adviser will assist a Committee or the Determining Authority in
undertaking its duties, but will in no way be a party to the
decision making process.

New subsection 106ZPL(2) specifies
that persons who provided other than clerical or administrative
support to the Director on a matter referred by the HIC must not
provide similar support on that matter to either a Committee or the
Determining Authority.

Similarly, new subsection 106ZPL(3)
precludes persons who provided other than clerical or
administrative support to a Committee from also providing similar
support to the Determining Authority on that matter.

New subsection 106ZPL(4) specifies
that for the period a person provides services to a Committee or
the Determining Authority, that person is not subject to any
directions by the Director.

New subsection 106ZPL(5) defines
services for this section as including clerical or administrative
services, investigative services, advisory services provided by a
practitioner and legal services. The term 'legal services' is
defined in section 81 (item 21).

Item 62

Inserts a number of new sections
dealing with enforcement issues in Division 7 of Part VAA of the
Act.

New sections 106ZPM and 106ZPN mirror
provisions currently in sections 105 and 105A of the Act and have
now been sited in a consolidated area dealing with failure to
comply with various provisions.

New Section 106ZPM - Failure of
person under review to produce documents or give
information

New section 106ZPM provides for the
full disqualification from medicare of the person under review or
an employee of that person or a person employed by a body corporate
of which the person under review is an officer, if that person
receives a notice under subsections 89B(2) or 105A(2) to produce a
document or provide information and either intentionally refuses to
produce that document or that information or fails to comply with
the requirement within the period specified in the notice.
The period of disqualification encompasses the time from the end of
the period specified in the notice until the document is produced
or the information is given.

New Section 106ZPN - Failure by
person other than person under review to produce documents or give
information

New section 106ZPN makes similar
provisions to new section 106ZPM for persons other than a person
under review who intentionally refuse or fail to comply with a
requirement to produce a document or provide information as
specified in a notice given under subsections 89B(2) or
105A(2). The maximum penalty for that offence is set at 20
penalty units. This is an offence to which section 4K
of The Crimes Act 1914 applies. This means the
maximum penalty that could be applied is to be calculated on the
basis of 20 penalty units being applied to each day each document
is not provided. Disqualification for a person, other than a
person under review, is not appropriate in this instance as the
person may not be a practitioner accessing medicare, but may in
fact be the owner/operator of a medical centre who is in control or
possession of the medical records being sought.

New Section 106ZPO - False or
misleading answers

This section mirrors subsection
104(4)(a) of the current Act and has now been situated in this
consolidated area dealing with failure to comply with various
provisions.

New section 106ZPO provides for
persons who, when asked a question by a Committee member at a
hearing, give an answer they know to be false or misleading, to be
guilty of an offence carrying a maximum penalty of imprisonment for
12 months.

New Section 106ZPP - False or
misleading documents

This section mirrors subsection
104(4)(b) of the current Act and has now been situated in this
consolidated area dealing with failure to comply with various
provisions.

New section 106ZPP provides for
persons who, in response to a notice by the Director or Committee,
produce a document which they know to be false or misleading or
intentionally refuse or fail to identify the respects in which the
document is false or misleading, to be guilty of an offence
carrying a maximum penalty of imprisonment for 12 months.

New Section 106ZPQ - No privilege
against self-incrimination

This section mirrors subsection
105A(6) of the current Act and has now been situated in this
consolidated area dealing with failure to comply with various
provisions.

New subsection 106ZPQ(1) provides
that self-incrimination is not a valid reason for refusing to
produce documents for inspection.

New subsection 106ZPQ(2) limits the
uses able to be made in proceedings of documents and any other
information or matter obtained as a direct result of the production
of documents produced at a hearing. Those documents or
information are not admissible in evidence against the person
producing the material in criminal or civil proceedings except in
connection with a prosecution of an offence under section 106ZPP or
any proceedings before a Committee or the Determining
Authority.

New Section 106ZPR - Publication
of particulars of reports and determinations

This section gives effect to
Recommendation 42 of the Report of the Review Committee Report.

New subsection 106ZPR(1) enables the
Director, when a final determination has come into effect, to
permit publication of a range of information about the person under
review. This includes the person’s name and address,
profession or specialty, the nature of the conduct in respect of
which a finding of inappropriate practice was made and the
directions contained in the determination.

New subsection 106ZPR(2) excludes
from publication ratified agreements between the Director and
person under review, consistent with Recommendation 42 of the
Report of the Review Committee.

New subsection 106ZPR(3) provides the
Director with statutory protection against defamation in publishing
this information. However, notwithstanding the statutory
protection from any defamation action, the Director would
nevertheless be subject to judicial review and to damages claims if
the power is abused.

Item 63

Repeals Part VA, that is, reference
to the Professional Services Review Tribunals and gives effect to
Recommendations 1 and 41 of the Report of the Review
Committee. The removal of the Tribunals recognises that
review on the merits of the final determination is not appropriate
in a Scheme in which the key judgment is a professional judgment by
the practitioner's peers about the practitioner's conduct.
The person under review will of course have full rights to seek
judicial review at any stage of the process.

Item 64

New subsection 130(5E) authorises the
HIC to provide the Director, a Committee, the Determining Authority
or anyone providing services to these persons or bodies with
information to help them in the performance of their functions or
duties or powers.

New subsection 130(5F) defines
services as being clerical or administrative services,
investigative services, advisory services provided by a
practitioner and legal services.

Part 2 -
Application, saving and transitional provisions

Item 65 - Application of
amendments

Provides for these amendments to only apply to
referrals made after the commencement of this Schedule.
Referrals made before the commencement of this Schedule continue to
be dealt with under the Act in force immediately before the
commencement of this Schedule.

Item 66 - Saving provision

Provides that where a Committee had engaged a
consultant under section 100 of the Act immediately before the
commencement of this Schedule, that consultant is to now be taken
to have been engaged by the Director. The consultant will be
considered to be engaged under the arrangements contained under
sections 106ZP and 106ZPL.

Item 67 - Transitional
provisions

Sub-item (1) requires the Director to continue
to arrange for the provision of services to a Committee considering
a referral made before the commencement of this Schedule.

Sub-item (2) provides that a person providing
services under sub-item (1) is not to be subject to the direction
or control of the Director in connection with those services.

Sub-item (3) allows for the provisions of new
section 105A (and the sanctions linked to 105A, that is, new
sections 106ZPM and 106ZPN) to apply to ‘old matters’
as well as ‘new matters’. That is, a Committee
considering an ‘old matter’ has all the powers and
sanctions available to it to obtain documents or information under
the provisions in new section 105A. This is consistent with
Recommendation 43 of the Report of the Review Committee.

Sub-item (4) allows the HIC to provide
information to the Director, a Committee, the Determining Officer
or any person assisting those offices in the exercise of their
powers.